Posted by Tristan on:
The 9th circuit hearing on California's prop 8 (Perry v. Schwartzenegger) adjourned at about 1pm today. It was broadcast live on CNN. There is good coverage and analysis at http://prop8trialtracker.com/
There was a lot of discussion about what level of scrutiny should be applied to the case. The prop 8 defense argued that the lowest level (rational argument) should be applied. The argument being that it is in the state’s interest to promote natural procreation.
The plaintiffs’ council, Ted Olson (the most eloquent and prepared lawyer in the hearing) argued that the case should be held to the highest level of scrutiny, as it concerns the Equal Protection Clause of the Fourteenth Amendment. Moreover it is an issue of liberty, privacy, association, and identity.
To what level of scrutiny the case should be judged was such a central topic because in his ruling, Judge Walker declined to state to what standard the case should be held. Walker stated to do so was unnecessary, because the defense had failed to provide sufficient evidence for even the lowest level, rational argument.
At this point it looks like it went well for the plaintiffs. Olson argued that even if it is in the best interest of the state to promote natural procreation, that denying same sex couples the right to marry will not will not put an end to them having families together. It only serves to withhold the same level of protection allowed other families. He also alluded that in attempting to defend this amendment to the CA constitution with the argument that the state should promote procreation, inscribes into that document a precedent for the government to have say over peoples reproductive rights. Olson supposed that in the future this argument could be used to restrict reproductive rights.
I have no idea how long it will take the judges to reach a conclusion, or if they can still throw out the case based on insufficient evidence from the defense to meet the burden of rational argument. We will have to keep our eyes on the news.